An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-1023


Filed: 3 October 2006

                                Gaston County
    v.                            Nos.    04 CRS 23681
                                    04 CRS 23682
TAVARUS LEON LIPSCOMB,                    04 CRS 64320
        Defendant.                    04 CRS 64321
                                    04 CRS 64322
                                    04 CRS 64323
                                    04 CRS 64325

    Appeal by defendant from judgments entered 1 April 2005 by Judge David S. Cayer in Gaston County Superior Court. Heard in the Court of Appeals 11 September 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General W. Dale Talbert, for the State.

    William D. Auman for defendant-appellant.

    GEER, Judge.

    Defendant Tavarus Leon Lipscomb appeals from his convictions for robbery with a firearm, discharging a weapon into occupied property, possession of a firearm by a felon, felonious breaking or entering, and three counts of assault by pointing a gun. Defendant's first argument on appeal is that the trial court erred by granting the State's motion to join the possession of a firearm charge with the other charges. We hold that defendant did not properly preserve this issue for appeal. Defendant also assigns error to the trial court's denial of his motion to dismiss the charges for insufficient evidence that defendant was theperpetrator of the crimes. We disagree because we find that the eyewitness testimony of two of the victims was sufficient to allow the charges to go to the jury. Having found no error in defendant's trial, we uphold his convictions and sentences.

Facts and Procedural History

    The State's evidence tended to show the following facts. Around 8:00 p.m. on the evening of 23 August 2004, 16-year-old Joshua White and his 11-year-old cousin, Dadrain White, were playing in Joshua's bedroom when they observed the home's exterior motion lights come on, and they heard knocking on the door. Their great-grandmother, Earline White, who was in the living room, called for Joshua to open the door. Joshua, mistakenly believing the knocking was coming from a side entry door, opened the side door and saw no one. He then heard a gunshot coming from the front of the house, locked the side entry door, and hid with Dadrain in a closet. While in the closet, the two boys heard someone outside the house hammering at the front door and yelling. Following some additional gunshots, they heard someone begin yelling from inside the house about money.
    At this point, Joshua left the closet and headed for the living room to check on his great-grandmother. Before he could reach the living room, Joshua encountered defendant, whom he recognized as an acquaintance of his mother's boyfriend. Defendant pointed a handgun at Joshua's chest and demanded to know who else was at home and where money was kept in the house. Dadrain then left the closet and joined Joshua. Defendant pointed the handgunat Dadrain and asked him the same questions. Joshua directed defendant to a small safe located in his mother's bedroom, where Dadrain's sister, eight-year-old Zakia, was watching television. Defendant retrieved the safe and brought it to the front door, where he began to shoot at it. When he was unable to open it that way, he again pointed his gun at Joshua, Dadrain, and Ms. White and said that if there was no money in the safe, he would come back and shoot them. He picked up the safe and carried it out the front door. After defendant walked to a stop sign two houses away, Joshua and Dadrain ran to a neighbor's house and called the police.
    Defendant was indicted on one count of robbery with a firearm, one count of first degree burglary, one count of possession of a firearm by a felon, one count of discharging a firearm into occupied property, and four counts of assault by pointing a gun. Following a trial, a jury convicted defendant on 30 March 2005 of robbery with a firearm, possession of a firearm by a felon, felonious breaking or entering, discharging a firearm into occupied property, and three counts of assault by pointing a gun. Defendant was acquitted of the remaining charge of assault by pointing a gun, based on his encounter with Zakia. The trial court sentenced defendant to 103 to 133 months for the robbery with a firearm charge. Defendant received a consolidated sentence of 34 to 50 months for the remaining charges, to be served consecutively.

    In his first assignment of error, defendant contends the trial court committed error by allowing the State's motion to join thecharge of possession of a firearm by a felon for trial with the other charges. Defendant concedes that he did not object to or argue against the State's motion below, and that he has therefore failed to preserve the issue for appellate review. N.C.R. App. P. 10(b)(1) ("In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make . . . .").
    Nonetheless, defendant argues that this Court should review the trial court's action for plain error under N.C.R. App. P. 10(c)(4) ("In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error."). It is well-settled, however, that plain error analysis under Rule 10(c)(4) is available only for errors in jury instructions and evidentiary matters. State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 148 L. Ed. 2d 543, 121 S. Ct. 635 (2000). The error asserted in this case pertains to the grant of a joinder motion by the State _ a matter in which the trial court has wide discretion. State v. Bell, 359 N.C. 1, 16-17, 603 S.E.2d 93, 105 (2004) ("'The propriety of joinder depends upon the circumstances of each case and is within the sound discretion of the trial judge.'" (quoting State v. Golphin, 352 N.C. 364, 399, 533 S.E.2d 168, 195 (2000), cert. denied, 532 U.S. 931, 149 L. Ed.2d 305, 121 S. Ct. 1379-80 (2001))), cert. denied, 544 U.S. 1052, 161 L. Ed. 2d 1094, 125 S. Ct. 2299 (2005). Because the challenged ruling is discretionary and pertains to neither jury instructions nor evidence, we may not exercise plain error review. State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000) ("[T]his Court has not applied the plain error rule to issues which fall within the realm of the trial court's discretion . . . ."), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997, 121 S. Ct. 1131 (2001). Defendant's first assignment of error is accordingly overruled.
    In his remaining assignment of error, defendant contends the court erred by denying his motion to dismiss the charges on the ground of insufficiency of the evidence. In ruling on a criminal defendant's motion to dismiss, the trial court must determine whether the State has presented substantial evidence (1) of each essential element of the offense and (2) of the defendant's being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). "'Whether evidence presented constitutes substantial evidence is a question of law for the court.'" State v. Frogge, 351 N.C. 576, 584-85, 528 S.E.2d 893, 899 (quoting State v. Stager, 329 N.C. 278, 322, 406 S.E.2d 876, 901 (1991)), cert. denied, 531 U.S. 994, 148 L. Ed. 2d 459, 121 S. Ct. 487 (2000). When considering the issue of substantial evidence, the trial court must view all of the evidence presented "in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).
    Here, defendant does not contest the sufficiency of the evidence to establish the elements of the offenses. Rather, he only argues that the uncorroborated testimony of Joshua and Dadrain is insufficient to identify defendant as the perpetrator. The general rule is that the credibility of identification testimony is for the jury to determine. State v. Guffey, 265 N.C. 331, 332, 144 S.E.2d 14, 16 (1965). This rule does not apply, however, when "the only evidence identifying the defendant as the perpetrator of the offense is inherently incredible because of undisputed facts, clearly established by the State's evidence, as to the physical conditions under which the alleged observation occurred." State v. Miller, 270 N.C. 726, 731, 154 S.E.2d 902, 905 (1967). If, however, "there is a reasonable possibility of observation sufficient to permit subsequent identification, the credibility of the witness' identification of the defendant is for the jury, and the court's doubt upon the matter will not justify granting a motion for judgment of nonsuit . . . ." Id. at 732, 154 S.E.2d at 906.
    In this case, when the evidence is viewed in the light mostfavorable to the State, the eyewitness testimony from the two boys was sufficient to allow a reasonable jury to find that defendant was the perpetrator of the crimes. Joshua had ample opportunity to view the perpetrator and to make an identification. He viewed the perpetrator at arm's length while the perpetrator held a gun to his chest; he also recognized the perpetrator as someone he had seen talking to his mother's boyfriend a week earlier. Furthermore, he gave the police a detailed description of the perpetrator's hairstyle and clothing. Finally, he made an immediate and positive identification of defendant as the perpetrator from a photograph lineup. Dadrain also identified defendant in court as the perpetrator. Defendant's final assignment of error is accordingly overruled.

    No error.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

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